Coronavirus: Legal Guidance for Employers- KLG Law

The Covid-19 virus, more commonly known as just the “coronavirus” has infected over 170,000 people worldwide and more than 6,000 casualties have been recorded. Even within a few days of publishing this blog, that number is sure to rise as the virus continues to spread globally. In England and Wales, we are not yet on total “lockdown”, but the impact of the virus has certainly been felt by employers across the country.

We have provided a guide explaining how employers can deal with the threat of the coronavirus to the workforce. This guide should not be misconstrued as legal or medical advice.

What is the coronavirus?

The symptoms of the coronavirus are very similar to a common cold or flu. Information from the NHS states the symptoms include:

A cough

A high temperature

Shortness of breath

These symptoms may develop in the 14 days after initial exposure to the virus.

It is not clear yet how the virus is spread between individuals. However, it has been suggested that it is spread by close contact (less than two metres) with an infected person or touching a contaminated surface and then touching your own mouth, nose or eyes.

What precautionary steps can be taken in the workplace?

Employers should ensure that staff in the workplace should:

Be updated on the latest actions being taken to reduce risks in the workplace;

Regularly wash their hands with soap and warm water;

Sneeze and cough into tissues which are disposed of in the bin – catch it, kill it, bin it!;

Have a clean workspace with wiped down work surfaces;

Use an alcohol-based hand sanitiser that contains at least 60% alcohol;

Have a clean restroom area that is tidy and stocked;

Avoid touching eyes, nose, and mouth with unwashed hands;

Limit travel for work purposes to essential travel only;

Avoid crowded areas e.g. public transport, city streets, etc;

Avoid close contact with people who are sick;

Provide up-to-date emergency contact details; and

Stay at home if unwell.

What if an employee falls ill at work because they have the coronavirus?

If an employee has become unwell at work you should isolate them in the workplace. This could involve putting them into a closed room or area before they are sent home. They should continue following the precautionary steps set out above whilst awaiting further assistance.

The unwell employee can call 111 for NHS advice or 999 if they are seriously injured. They can also make use of the NHS 111 online service.

What if an employee calls in sick because they have the coronavirus?

If an employee has called in sick because they suspect they have the coronavirus, please do not panic. The latest government guidance has confirmed that there is no need to send staff home from work. The appropriate next step would be to contact your local Health Protection Team to discuss the case. They will carry out a risk assessment and provide further advice on the next steps. Whilst you await further assistance you can ensure employee’s follow the precautionary steps set out above.

What pay would an employee who is off sick with coronavirus be entitled to?

If an employee is off sick with the coronavirus they would be entitled to the same sick leave and sick pay as if it was any other illness (e.g. tonsillitis). This could include company sick pay. The employee should follow the company sickness policy to the best of their abilities as usual.

Under new government measures implemented specifically for the coronavirus, the government will meet the cost of coronavirus-related Statutory Sick Pay for small businesses with under 250 employees for 14 days. It is estimated that this will provide approximately £2 billion for up to 2 million businesses.

Employees off sick from work following medical advice (relating to the coronavirus) will be entitled to Statutory Sick Pay from day one, rather than day four under the usual measures, in the near future when emergency legislation is implemented.

The employer may need to make certain allowances. For example, an employee with coronavirus may be advised to self-isolate, and therefore they potentially will not be able to get a fit note in the prescribed timeframe. The government have announced that within a few weeks you will be able to use an NHS 111 notification as evidence for absence from work where necessary.

What if an employee is not at work because they have been advised to stay in isolation, BUT they do not have coronavirus?

If an employee has been advised by the NHS 111 service or a doctor to self-isolate they should be treated as if they are on sick leave and the employer’s usual sick policy should apply, including any company sickness policy under the new government measures.

This can include circumstances where an employee has returned to work from a high-risk area.

What if an employer makes the decision staff to go home as a precaution?

If an employer is particularly worried they can choose to close the business as a precautionary measure. For example, this may be appropriate because a lot of people in the team have a pre-existing medical condition that puts them at high risk to the coronavirus.

If the employee has a “mobility” clause in their contract whereby the employer can request they work within a reasonable distance of their place of work, this would be possible. Even if this clause did not exist, it would more than likely be a reasonable request for an employer to make, but it is best to consult with the affected employee. In your consultation you could discuss whether they are happy to work from home and if any adjustments will be needed. Working for home has been encouraged for those with an increased risk of severe illness from coronavirus.

If the employer makes this decision, employee’s should get their usual pay. However, the employer can reduce the hours of any zero hour workers without additional remuneration.

What if an employee does not go to work because they fear catching the coronavirus?

If an employee does not attend work without authorisation they may face disciplinary action, including dismissal on the grounds of gross misconduct.

It is best practice to take the employee’s health and safety concerns into consideration and to try and find a resolution. This could involve the employee taking annual leave or unpaid leave, or even arranging a flexible working arrangement. However, it must be noted that the employer has no obligation to provide the employee with this.

It is important to acknowledge the circumstances of each specific case. Working for home has been encouraged for those with an increased risk of severe illness from coronavirus.

What if an employee is pregnant and does not want to come into work?

Those who are pregnant have now been included in the group of people “at increased risk of severe illness from coronavirus” under government guidelines.

As an employer you cannot force the pregnant to take time off from work and self-isolate. Best practice would be to have a conversation with the employee to discuss any of your concerns and also to address their concerns. You can explore options such as changing their maternity leave dates or using annual leave.

If an employee has been advised by the NHS 111 service or a doctor to self-isolate they should be treated as if they are on sick leave and the employer’s usual sick policy should apply. Click here for further guidance.

What if an employee does not go to work because they need to look after someone?

An employee is allowed to take time off for dealing with an emergency involving a dependant. This can include looking after a close family member if they fall sick, or if a child’s school has been closed and childcare needs to be arranged.

There is no statutory right for an employee to receive this time off paid. If an employer decides to pay an employee for this time off, they should be consistent with this approach to avoid any discrimination claims.

What measures can an employer take to help their business work during these testing times?

An employer can consider reducing their workforce if there has been a downturn in work meaning members of staff do not have much work to do.

An employer can make employees redundant. This redundancy process must be carried out fairly and should not be a hasty decision. If carried out incorrectly, an employee may have a strong claim for unfair dismissal.

Other options include lay-offs and short-time working. A lay-off is effectively a temporary redundancy, where there is no work so you send employee’s home. Short-time working is where there less than half the normal amount of work so you will only pay employee’s for work they complete. These options can only be utilised if the appropriate clause is included within the employee’s contract of employment.

An employer can also ask an employee to use their annual leave. This request must be made with proper notice. For further guidance on this option please contact our team.

Arguably the most common measure used is working from home. This is a highly recommended way of ensuring the work still gets completed from the comfort of the employee’s home. An employer should assist the employee as much as possible with this. For example, an employer could provide staff with work laptops, mobile phones or soft phones. This can also be used during self-isolation, provided the employee is not off sick.

Our advice is not to panic and to take further legal advice before making any fundamental business changing decisions.

If you are in need of legal support in relation to any employment matter such as flexible working, redundancies and working from home, please contact our team of employment law specialists contact us today on 0800 8321 554 or by e-mailing info@klglaw.co.uk.

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